To paraphrase Saiontz and Kirk, if you have a gun, you have a lawyer.
And not just any lawyer, mind you, but former Virginia Attorney General and 2013 Republican gubernatorial candidate Ken Cuccinelli. Last week, the Washington Post reported that Cuccinelli and three colleagues opened a small firm, named Virginia Self-Defense Law (VSDL). The firm launched with a bang, triggering pot shots heard round the blogosphere. As Joe Patrice explained earlier today, VSDL targets gun-toting Virginia residents with legal retainer plans, starting at $8.33/month, that promise representation for self-defense or law enforcement harassment situations that arise out of the use of firearms.
For those unfamiliar with Virginia politics, Cuccinelli’s controversial political views have given his critics plenty of ammunition. But politics aside, does Cuccinelli’s retainer plan hit the mark as a sustainable or ethical business model? Let’s scope it out….
At first glance, VSDL’s clunky website — featuring an early 90’s color palette and amateurish copy (some of the grammar is so poor, it must have been off-shored) — conveys the impression of a bottom-of-the-barrel operation. The bargain-basement pricing doesn’t help in this respect. Yet closer examination reveals a higher-caliber potential.
Consider the price structure. Cuccinelli’s firm charges $147/year ($12.25/month) for a concealed handgun permit (CHP) plan. With 282,591 CHP holders in Virginia as of 2012, even if Cuccinelli bags a scant one percent, that’s 2,800 times $147/year or a total of $411,600 in annual revenue. And that’s just CHP holders; Cuccinelli’s firm represents other permit holders for slightly less (since ordinary gun permit holders can’t carry their weapons as freely, there’s less of a chance that they’ll get into the kind of trouble that would warrant the firm’s services).
What’s more, because the VSDL retainer plan is intended to ensure that firm’s availability for self-defense or other types of claims, it’s considered a true retainer. As such, Virginia Legal Ethics Opinion 1807 not only permits but requires lawyers to deposit “true retainers” into their operating account (where it can be spent immediately), rather than hold it in their trust account. Consequently, the firm’s retainer plans provide an immediate cash flow benefit.
Of course, even with all that cash, the VSDL retainer plan model could backfire. What if, for example, there’s an explosion of clients demanding the firm’s services all at once? For starters, that’s probably unlikely. As a former AG, Cuccinelli has a fairly good idea of the number of self-defense and gun harassment cases that arise each year, so he probably did the math before creating the retainer plan. In addition, the risk of over-demand is spread among four lawyers, mitigating the possibility of burying one attorney with dozens of cases. Finally, in a worst-case scenario, the firm could use the cache of cash from retainer plan sales to hire one or two full-time lawyers to handle the additional self-defense work.
But it’s the caveats in the VSDL retainer that provide true bullet-proof protection. Significantly, the retainer plan covers only legal fees, not costs — which means that clients still bear the considerable expense of a ballistics expert or investigator. In addition, there’s also a sex, drugs and rock and roll clause that disclaims coverage for weapons charges that arise out of a drug deal or other illegal activity.
While the VSDL plan appears to offer a sustainable business model, how does it fare from a legal ethics perspective? As I blogged at MyShingle, subscription plans often implicate concerns such as the possibility for excessive fees (for example, if a firm charges significant monthly fees but offers few services in return) or deceptive advertising (where a firm suggests greater savings than actually achieved). Because Cuccinelli’s plan is so cheap, it’s unlikely to be regarded as an unreasonable fee, even if the client never uses the service. Plus, the firm promises to provide updates on handgun legislation and emerging cases as part of membership in the retainer plan — so even clients who never need legal representation receive something in return.
As for the potential to mislead client — well, sure, the website copy uses plenty of fear-inducing hyperbole. The site boasts that a VSDL retainer plan can spare a gun holder charged with a crime from “bankruptcy” resulting from a high-cost defense, and also mentions that legal defense costs can reach “hundreds of thousands of dollars” in some cases. Still, I’m not sure that the site crosses the line into unethical deception; the site’s claims are true in some cases, and the VSDL plan caveats are disclosed and explained in the FAQ section of the site.
Finally, what about the propriety of the firm’s use of a trade name (a topic discussed last week by my ATL small-firm blogging colleague, Christina Gagnier? Turns out, Virginia ethics rules permit use of trade names, so VSDL passes muster on that front as well.
Granted, the Virginia Self-Defense Law retainer plan isn’t necessarily a surefire path to success for every law firm. Indeed, the jury’s still out on whether it will work effectively for Cuccinelli and company. Still, this kind of business model — applied to other practice areas, and tightly structured to minimize risk of too much demand — might just be worth a shot.
Of course, if that’s not what you were hoping to hear, well — take aim at the concept in the comments — but please don’t shoot the messenger!
Carolyn Elefant has been blogging about solo and small firm practice at MyShingle.com since 2002 and operated her firm, the Law Offices of Carolyn Elefant PLLC, even longer than that. She’s also authored a bunch of books on topics like starting a law practice, social media, and 21st century lawyer representation agreements (affiliate links). If you’re really that interested in learning more about Carolyn, just Google her. The Internet never lies, right? You can contact Carolyn by email at email@example.com or follow her on Twitter at @carolynelefant.